VAN DER FELTZ and CITY OF VINCENT - [2017] WASAT 153

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: VAN DER FELTZ and CITY OF VINCENT [2017] WASAT 153

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 3 NOVEMBER 2017

DELIVERED : 3 NOVEMBER 2017

PUBLISHED : 30 NOVEMBER 2017

FILE NO/S: DR 194 of 2017

BETWEEN: RIC VAN DER FELTZ
SONJA VAN DER FELTZ
Applicants
AND
CITY OF VINCENT
Respondent

Catchwords:

Practice and procedure - Abuse of process - Relitigation of decided matter - Town planning - Development application - Carport - Development application for carport refused by Tribunal in previous review proceedings - Applicants lodged a second development application for same development with respondent and sought review by Tribunal of refusal of that development application - No change in planning framework or any other significant or substantial change in circumstances since Tribunal refused first development application

Legislation:

Planning and Development Act 2005 (WA), s 244 and s 252(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 47(1) and s 49

Result:

Proceeding dismissed as an abuse of process

Summary of Tribunal's decision:

Mr and Mrs van der Feltz sought review by the Tribunal of the decision of the City of Vincent to refuse to grant them development approval for the construction of a carport in the front setback area of their dwelling. Following a contested final hearing, the Tribunal dismissed the application for review and affirmed the City's decision to refuse development approval for the carport.
Within about three weeks of the Tribunal's decision, Mr and Mrs van der Feltz lodged a second development application with the City seeking approval for the same development. When their second development application was also refused by the City, Mr and Mrs van der Feltz sought review by the Tribunal of that decision.
The City applied for the second review proceeding to be struck out or dismissed as an abuse of the Tribunal's process.
The Tribunal determined that the second review proceeding involved an abuse of its process by relitigation of a decided matter. The proposed development in the second review proceeding was the same as the proposed development in the first review proceeding. The planning framework had not changed and there was no other significant or substantial change in circumstances. The Tribunal therefore determined that to allow the second review proceeding to continue would bring the administration of administrative justice into disrepute and dismissed the proceeding as an abuse of process.

Category: B

Representation:

Counsel:

Applicants: In Person
Respondent: Mr R Sklarski (Town Planner)

Solicitors:

Applicants: N/A
Respondent: N/A

Case(s) referred to in decision(s):

AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bastick and Western Australian Planning Commission [2006] WASAT 223
Erujin Pty Ltd and Western Australian Planning Commission [2011] WASAT 50
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1
Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290
van der Feltz and City of Vincent [2017] WASAT 133

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The following are my reasons for decision in relation to an application made by the City of Vincent (City) for an order striking out or dismissing this proceeding as an abuse of process.

Background

On 5 April 2016, Mr and Mrs van der Feltz made a development application to the City seeking development approval for the construction of a carport in the front setback area of their dwelling at No 131 Coogee Street, Mount Hawthorn. On 8 October 2016, the City resolved to refuse that development application.
On 9 November 2016, Mr and Mrs van der Feltz sought review by the Tribunal of the City's refusal of the development application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). The application for review was heard by the Tribunal constituted by Member Patric de Villiers on 14 February 2017. On 2 March 2017, Member de Villiers gave an oral decision in which he refused development approval, that is to say, he affirmed the City's refusal of development approval. He did so for the following reasons (T:15 ‑ 16; 02.03.17):
Any decision on whether to exercise discretion in the matter under review involves weighing the impact of the proposed carport against all the relevant provisions of the residential design codes. Due regard to all the relevant provisions of clause 67 of the [deemed provisions in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)] and consideration of applicable council policy. In this regard, the [T]ribunal finds that the proposed carport would not reduce the impact of access points on the streetscape or minimise crossovers to the primary street.
Importantly, this is the context that access is both available from the right of way and has already been taken. In addition, the [T]ribunal finds that the carport would intrude on sightlines along the street and partially obstruct views of the dwelling from the street and with the removal of the tired [sic] awning over the window of the front room involves a removal of a design element which makes some contribution to the streetscape. While the [T]ribunal finds that the variations of 600 millimetres to the width of the crossover is not, in principle, unacceptable, it finds that the construction of the crossover is likely, in the longer term, to have an adverse impact on the health of the existing street tree.
In this context, in the exercise of discretion to approve the proposed development would have the result of both adversely impacting on a reasonably coherent streetscape and would undermine the potential for the respondent to effectively implement the properly constituted planning framework. In conclusion, on balance and on light of all of the evidence before it, the [T]ribunal does not consider that the mobility issue raised by the applicant be elevated to a determinate factor in this review, and for the reasons set out above, the carport does not warrant approval. The application should be dismissed and the decision of the respondent affirmed.
Mr van der Feltz has informed the Tribunal today that following the decision of the Tribunal in relation to the development application for the carport on 2 March 2017, he had further discussions with officers of the City. Encouraged by those discussions, Mr and Mrs van der Feltz lodged a fresh development application for the same development, namely a carport in the same location as proposed in the development application determined by the Tribunal on review on 2 March 2017. Mr and Mrs van der Feltz lodged their second development application for the carport on 23 March 2017, within about three weeks of the Tribunal's determination of the first review proceeding.
The second development application was refused by the City on 26 May 2017. It is instructive to note that the issues identified by the Tribunal in its decision on 2 March 2017, which were the issues before it in relation to the application for review of the refusal of the first development application for the carport, are essentially identical to the reasons for refusal of the City in its notice of refusal dated 26 May 2017 to Mr and Mrs van der Feltz's second application for the carport (although the reasons for refusal dated 26 May 2017 are more comprehensively expressed).
The reasons for refusal of the application on 26 May 2017 are as follows:
1.The proposed development does not meet design principle P1 of Clause 5.2.1 of State Planning Policy 3.1: Residential Design Codes as it will not enable clear sight lines along the street to be maintained, it will detract from the streetscape and appearance of the dwelling and will partially obstruct views of the dwelling from the street;
2.The proposed development does not meet design principle P5 of Clause 5.2.5 of State Planning Policy 3.1: Residential Design Codes as:
a.the height and location of the picket fence will obstruct sightlines at the vehicle access point which will compromise safety and visibility between the vehicle accessway [sic] and the footpath;
b.the existing verge tree will obstruct vehicle sightlines between the vehicle access way and Coogee Street which will compromise safety and visibility;
3.The proposed development does not meet design principle P5.1 of Clause 5.3.5 of State Planning Policy 3.1: Residential Design Codes as:
a.the proposed crossover location does not enable safe vehicle access to the subject lot and the street, and it will compromise pedestrian safety due to the location of the existing verge tree; and
b.it does not reduce the impact of access points on the streetscape or minimise crossovers to Coogee Street; and
4.Having due consideration to subclauses 67 (n), (o) and (p) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the development will adversely impact on the health of the existing verge tree due to its proximity to the proposed crossover. Any detrimental impacts on, or removal of, the verge tree would impact on the amenity of the locality and character of the Coogee Street streetscape.
The issues put forward by the City in the application for review of the refusal of the first development application for a carport were summarised by Member de Villiers at page 6 of the transcript of reasons as follows:
(1)Whether the proposed vehicle access to the site meets the design principles of clause 5.3.5 - vehicular access under the Residential Design Codes.
(2)Whether the proposed carport meets the design principles of 5.2.1 – setbacks of garages and carports under the Residential Design Codes;
(3)Whether the proposed separation distance from the crossover to the existing verge tree is acceptable and whether the crossover to the carport as proposed is likely to impact the long term health of the existing well‑established, mature Western Australian peppermint verge tree.
(4)Whether the crossover is acceptable.
It is clear that, in substance:
•issue (1) identified by the City in the earlier proceeding is its reason for refusal (3) in relation to the second development application;
•issue (2) put forward by the City in relation to the first application for review is now reason for refusal (1) in relation to the second development application;
•issue (3) put forward by the City in relation to the earlier proceeding is now, in substance, reason for refusal (4) in relation to the second development application; and
•issue (4) put forward by the City in relation to the earlier proceeding is reason for refusal (2) in relation to the second development application.
In its advice note at the end of its refusal dated 26 May 2017 in relation to the second development application, the City noted that:
The proposal does not include any amendments to the previous proposal which was refused by the council and upheld by the State Administrative Tribunal.
Mr and Mrs van der Feltz sought review of the refusal by the City of the second development application pursuant to s 252(1) of the PD Act on 9 June 2017. The application for review was listed for a directions hearing on 23 June 2017. The directions hearing was subsequently adjourned to 30 June 2017, and then to 11 August 2017, and then again to today in order to allow Mr and Mrs van der Feltz an opportunity to lodge, or more correctly, to seek an extension of time in which to seek review under s 244 of the PD Act in relation to the determination of the Tribunal on 2 March 2017. Section 244 of the PD Act enables a judicial member of the Tribunal to review a decision of a non-legally qualified member of the Tribunal in a planning review proceeding upon a matter involving a question of law.
Mr and Mrs van der Feltz did seek an extension of time in which to apply for a review under s 244 of the PD Act. Their application for an extension of time was determined on the documents by Justice Curthoys, President of the Tribunal, on 10 October 2017: see van der Feltz and City of Vincent [2017] WASAT 133. The President declined to grant the application for an extension of time in which to seek review under s 244 of the PD Act. One of the factors and findings of the President, which he then considered and balanced in the exercise of discretion, was that none of the proposed grounds of review in relation to the determination by Member de Villiers were arguable.
The grounds of review, which numbered some 22, were, in part, directed to Member de Villiers' conduct of a directions hearing on 7 February 2017 at which there was a discussion about a number of matters in relation to the hearing of the first development application. At the directions hearing, Mr van der Feltz was offered an adjournment by the Tribunal of one to four weeks of the final hearing listed on 14 February 2017, but declined that invitation. This is a factor referred to by the President in his decision.
Two of the grounds also related to the actual determination by Member de Villiers of the first development review. Those grounds, being grounds 18 and 19, were as follows:
Considering access issues and suggesting modifications to our property while disregarding my need to park undercover/off street and have access to my car which is the essence of the application.
Agreeing with witness T. Hockley that under the new rules the carports in the block to the north would not be approvable.
The President determined, at paras [50] and [51] of his reasons, as follows:
Ground 18 relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Ground 18 does not involve a question of law. Consequently, ground 18 does not disclose an arguable case.
Ground 19 relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Further, ground 19 does not involve a direction, determination or order of the Tribunal and is, therefore, not amenable to review under s 244 of the PD Act. Ground 19 does not involve a question of law. Consequently, ground 19 does not disclose an arguable case.

Application for proceeding to be struck out or dismissed as an abuse of process

Against this background, the City makes an application under s 47(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the second review application in relation to the carport proposed by Mr and Mrs van der Feltz in the front setback area of their property at 131 Coogee Street, Mount Hawthorn be struck out or dismissed as an abuse of process.
Section 47 of the SAT Act states as follows:
(1)This section applies if the Tribunal believes that a proceeding —
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

Is this proceeding an abuse of process?

It is not in dispute between the parties that the development proposed in the first development application, which was the subject of the application for review determined by the Tribunal on a final basis on 2 March 2017, is, in substance, the same development as is proposed in the second development application, which is the subject of the current application for review before the Tribunal. Mr and Mrs van der Feltz have not indicated to the Tribunal that there is any change between the two applications. The City's position, as I said earlier, and as referred to in its advice note to Mr and Mrs van der Feltz in its determination of 26 May 2017, is that the proposal now before the Tribunal in the second review proceeding does not include any amendments to the previous proposal which was refused by the Council and by the Tribunal in the first review proceeding.
Furthermore, it is not in dispute between the parties that the planning framework that applied at the time, and was applied by the Tribunal at the time it considered the first application for review and determined that application on a final basis on 2 March 2017, has not changed in any substantive way or, indeed, in any way, between the determination by the Tribunal on 2 March 2017 and today. Nor is there any other significant or substantial change in the circumstances between 2 March 2017 and now.
The situation is, therefore, that Mr and Mrs van der Feltz seek a determination by the Tribunal for a second time in relation to the same development and the planning framework that would be applied by the Tribunal in determining the second application for review is the same as the planning framework that applied and was applied by the Tribunal at the time it determined the first application for review.
Section 9 of the SAT Act states as follows:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are —
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
The Tribunal is conscious of those objectives in all its determinations including in considering an application for the strikeout or dismissal of a proceeding on the basis that it is an abuse of process. The Tribunal is also conscious in determining the application for the striking out or dismissal of proceedings on the basis that they are an abuse of process, that given the relative informality of SAT's procedures, any application to dismiss or strike out a proceeding on the basis that it is an abuse of process should be approached with a great deal of caution, particularly where proceedings are brought by unrepresented parties, as is the case both in the first review proceeding and in this review proceeding.
The expression 'abuse of process' has, as held by Justice Allanson in Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [34], an acquired legal meaning and is used in s 47 of the SAT Act in that sense. The principles relating to abuse of process in a court of record, including an abuse of process by relitigation of a matter that has been finally determined, are properly applied to this Tribunal.
In my view, to allow the current proceeding to continue would bring the administration of administrative justice into disrepute. This is because it would undermine the important public interest that there should be finality in litigation, and also because it would be inconsistent with:
the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. (Lord Bingham of Cornhill in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, 31, referred to by Chief Justice French in AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [34]).
In my view, the second of those matters is of even greater significance in this Tribunal, given the terms of s 9 of the SAT Act, and, in particular, the Tribunal's objective:
to act as speedily … as is practicable, and minimise the costs to parties.

The substance of Mr and Mrs van der Feltz's application for development approval in this proceeding has already been determined by this Tribunal in March of this year. Mr and Mrs van der Feltz had the opportunity to present their case and did so, and the Tribunal came to a final determination on the merits of the matter.
Mr and Mrs van der Feltz submit that there is no abuse of process in this case for a number of reasons. Firstly, they refer the Tribunal to the decision of the New South Wales Court of Appeal in Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290 in support of their submission that res judicata or cause of action estoppel does not apply in an administrative tribunal. That, of course, is entirely correct and was determined in that case. However, in that case, the New South Wales Court of Appeal recognised that a planning review tribunal may strike out proceedings as an abuse of process. In the decision of Davies AJA, who agreed with Stein JA, his Honour held as follows at [14] and [15]:
Nevertheless, it is an abuse of process for an applicant to bring repeated applications to a court, such as the Land and Environment Court, seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions.
The application of this principle is not precluded by the making of some minor changes to a town planning application or by reliance upon an argument or arguments which could have been put were not previously put. If there has been no significant change in circumstances, the new application ought not to be brought. Otherwise, the application will appear to be a collateral attack upon the prior decision or decisions of the Court.
It is recognised that this Tribunal is a tribunal, not a court. However, the court proceeding to which the New South Wales Court of Appeal was referring in the appeal decision of Russov Kogarah Municipal Council was an administrative appeal (review) proceeding in a planning case before the Land and Environment Court of New South Wales.
There is no relevant distinction between a development appeal made to the Land and Environment Court of New South Wales seeking to reagitate issues which have as a matter of substance already been determined in a prior planning appeal decision of that Court and a planning review proceeding in the State Administrative Tribunal seeking to reagitate issues that have as a matter of substance already been determined in a prior planning review decision of the Tribunal.
Those same principles have been applied in this Tribunal in the decision of Erujin Pty Ltd and Western Australian Planning Commission [2011] WASAT 50. In that decision, the Tribunal determined that a planning review proceeding was an abuse of process by relitigation of a decided matter. The application in that case was a subdivision application, not a development application. However, in my view, the same principles apply.
In my view, important procedural aspects of the administration of justice in terms of finality of litigation and efficiency and economy in the conduct of litigation, the latter aspect being of heightened significance in the work of this Tribunal, each warrant a finding that the current proceeding involves an abuse of the Tribunal's process by relitigation of a decided matter.
The Tribunal made a final decision in relation to the application for review of the first development application in March this year. It did so on a final basis and refused to grant development approval and affirmed the City's refusal of development approval. The issues that were before the Tribunal on that occasion were, in substance, the same issues on account of which the City has refused the second development application. The development the subject of that proceeding is in substance the same, indeed, both in substance and form, the same as the development as is the subject of this proceeding. The planning framework has not changed in any way since the determination of the first proceeding in March 2017 and there has been no other significant or substantial change in circumstances. Unfortunately for Mr and Mrs van der Feltz, that, in my view, has the effect that this proceeding is an abuse of process, and it would bring the administration of administrative justice into disrepute to continue the matter.
Mr and Mrs van der Feltz have raised a number of other arguments as to why the Tribunal should not strike out their proceeding as an abuse of process.
Firstly, they refer the Tribunal to the decision of Bastick and Western Australian Planning Commission [2006] WASAT 223, in which Justice Barker, the President of the Tribunal, discussed prejudice. They submit that they would be significantly prejudiced by not being able to have this matter go to hearing. However, that discussion of prejudice was in the context of an application to extend time in which to seek review of the determination of a subdivision application.
Secondly, they submit that, although there has been no change in the planning framework between the date that the Tribunal determined the first development review proceeding and today, there was a change in the planning framework leading up to the hearing of the first review proceeding. Indeed, they said that they only were made aware of the change in the planning framework at the directions hearing before Member de Villiers on 7 February 2017. However, Mr and Mrs van der Feltz were provided with an opportunity for an adjournment of the final hearing, and they elected not to take up that opportunity. They did have the opportunity then to present their case at the final hearing.
Next, Mr and Mrs van der Feltz submit that it is in the interests of justice that they should be able to proceed now, because it took the Council seven months to make a decision on the first development application and, during that time, or at least during the time between their lodgement of the first development application and the determination of it on review by the Tribunal, the planning framework changed in some respect.
However, Mr and Mr van der Feltz had the opportunity to present their case and to respond to the City's case, and had a determination by the Tribunal on the merits of their development application in March 2017 and, as I have said, the planning framework that applied then continues to apply now.
Next, Mr and Mrs van der Feltz submit that, if there is an abuse of process, then I should grant leave under s 49 of the SAT Act for them to still proceed in the Tribunal. Section 49 of the SAT Act provides as follows:
If a proceeding is dismissed or struck out under section 46, 47 or 48, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member.
However, I am not satisfied that leave should be granted in this case to bring a fresh proceeding, for the reasons that Mr and Mrs van der Feltz, while unhappy with the outcome of the first determination, had the benefit of a determination on the merits of their development application which was substantially the same, if not identical to, the current development application.
Mr and Mrs van der Feltz also submit that to strike out this proceeding would deny them the ability to have their application dealt with on the merits and on the law. However, as I have said, they have had that opportunity and, although they are unhappy with the outcome, they were provided with an opportunity to present their case on 14 February 2017 and with a final determination on 2 March 2017.
Mr and Mrs van der Feltz also submit that they did not have enough time to prepare for that hearing because of the new planning policy that they were made aware of at the directions hearing. However, as I have said, Mr and Mrs van der Feltz were given the opportunity for an adjournment of their final hearing at the directions hearing, but they did not accept that opportunity. This is a matter referred to in the President's decision as well. Furthermore, Mr and Mrs van der Feltz have had the opportunity to seek an extension of time in which to apply for review by a judicial member under s 244 of the PD Act. The President has determined that none of the proposed grounds of review on a question of law had prospects of success.
Finally, Mr and Mrs van der Feltz submit that there is no abuse of process, because if I, as a judicial member of the Tribunal, were to go on and list the application for review before myself, then the Tribunal as constituted in the second review would be different to the Tribunal as constituted in the first review. In particular, it would be a judge determining the matter, rather than a Tribunal member.
In my view, that is a distinction relevantly without difference. Whether the Tribunal is constituted by a judicial member or another member, whether non-legally qualified or legally qualified, it is the same Tribunal. In this case, the Tribunal has made a final decision in relation to the same development application as is now the subject of this proceeding.
The planning framework has not changed, and there has been no other change of circumstances of any substance identified. In all of the circumstances, in my view, it is an abuse of process to continue with this proceeding, as it would bring the administration of administrative justice into disrepute. It would undermine the important public interest that there should be finality in litigation and it would be inconsistent with the emphasis on efficiency and economy in the conduct of matters, particularly in this Tribunal. It would expose the City to having to defend the same decision a second time. In my view, that is an abuse of process.
For these reasons, the Tribunal makes the following order:
Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) this proceeding is dismissed as an abuse of process.
That concludes this matter.

I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT